Ammon v Colonial Leisure Group - [2017] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AMMON -v- COLONIAL LEISURE GROUP [2017] WASC 332

CORAM: MASTER SANDERSON

HEARD: 14 NOVEMBER 2017

DELIVERED : 14 NOVEMBER 2017

PUBLISHED : 17 NOVEMBER 2017

FILE NO/S: CIV 2449 of 2017

BETWEEN: DEREK NOEL AMMON
Plaintiff
AND
COLONIAL LEISURE GROUP
Defendant

Catchwords:

Interlocutory injunction - Noise from hotel - Turns on own facts

Legislation:

Environmental Protection (Noise) Regulations 1997

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr A P Hershowitz
Defendant: Ms C L Donald

Solicitors:

Plaintiff: JDK Legal
Defendant: Lavan

Case(s) referred to in judgment(s):

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

MASTER SANDERSON: This was the plaintiff's application for an interlocutory injunction. At the conclusion of the hearing I indicated to the parties I would dismiss the application. I said I would publish reasons for my decision. These are those reasons.
The background facts can be quite shortly stated. The defendant is the licensee and operator of the Raffles Hotel. The Raffles Hotel is located close to Canning Bridge on the corner of Canning Highway and Canning Beach Road Applecross. An apartment complex is located on the northern boundary of the Raffles and is part of the same strata complex as the hotel. The plaintiff is permanently resident in the apartment complex and has been since 2009.
Since 2014 the defendant has operated two upstairs bars/function areas including the River Room which has an outside balcony which overlooks a beer garden. The southern boundary of the plaintiff's apartment is no more than 5 m from the beer garden.
It is common ground music is played in the River Room upstairs bar and in the beer garden. When the beer garden operates the noise emissions are a mixture of music and noise of patrons. The Raffles is open for business seven days a week. It is open until midnight Monday to Saturday and to 10 pm on Sunday.
The plaintiff says since late 2014 he has experienced noise disruption in his apartment. He says he had made numerous complaints to representatives of the defendant and he has taken up his complaints with the local authority which is the City of Melville. There have been ongoing communications with the City and the plaintiff's solicitors for over two years concerning the noise issues.
The plaintiff has engaged expert acoustic consultants Herring Storer Acoustics to install noise monitoring equipment in his apartment and to provide reports as to their findings. The four reports are dated respectively November 2015, June 2017, July 2017 and August 2017. They are attached to an affidavit of George Arthur Watts sworn 30 August 2017 and filed in support of this application. The expert reports conclude that as at the four dates of the reports the noise received at the apartment exceeds the assigned noise level stipulated by the Environmental Protection (Noise) Regulations 1997. This applies to the noise level on the apartment balcony and the noise level inside the apartment.
The plaintiff issued proceedings on 30 August 2017. By his amended statement of claim he alleges the noise created in the hotel is a public nuisance. He seeks a permanent injunction to prevent noise being generated which offends the regulations. Doubtless the form of relief will be fleshed out more fully as the action progresses. But it is enough to note at present that the claim is based on the tort of public nuisance and that the relief sought is an injunction against the playing of loud music.
On 4 September 2017 the plaintiff filed a chamber summons for interlocutory relief. The relief claimed in the chamber summons appears to be more limited than the final relief claimed. Relevantly the orders sought by the plaintiff were as follows:
(a)the defendant be restrained from permitting or directing the Raffles Hotel (Hotel) situate at 70 Canning Beach Road Applecross in the State of Western Australia from playing any form of music or broadcasting any form of music in the beer garden at the Hotel
(b)the defendant be restrained from permitting the Hotel to operate the upstairs bar unless the doors and windows to the upstairs are kept closed.
(c)the defendant be restrained from playing any form of music in any outside area of the Hotel.
(d)the defendant do install and utilise a noise limiter in all inside areas of the Hotel where music of any form is played.
All parties were agreed as to the test to be applied when the issue is the grant of an interlocutory injunction. Relying upon the decision of Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [11] the questions are:
(a)whether there is a serious question to be tried or a prima facie case;
(b)whether the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation for the plaintiff;
(c)whether the balance of convenience favours the grant of the interlocutory injunction.
At the commencement of hearing, I indicated to counsel for the plaintiff that for the purposes of the application I was prepared to accept there was a serious question to be tried and that damages would not be adequate compensation. Given this is an interlocutory hearing it was not appropriate for me to determine finally any issues of fact and I have not done so. However, the expert reports lodged by the plaintiff would seem to indicate that there is a level of noise emanating from the hotel which is in excess of what is permissible under the regulations. Of course that does not mean the noise is a public nuisance. The defendant has not put on any expert evidence and the expert evidence put on by the plaintiff is untested. But any fair reading of the evidence of the plaintiff taken together with the evidence of the expert indicates there is a serious question to be tried. Moreover, as the issue is noise there can be no suggestion damages would be an adequate remedy. So the first two limbs of the test are satisfied. The question then is where the balance of convenience lies.
Four factors are generally considered when determining where the balance of convenience lies. The first, whether the plaintiff will suffer irreparable injury if the injunction is not granted. Second, where the status quo lies. Third, any prejudice to third parties. Finally the relative strength of the plaintiff's case. This final consideration was not a factor in this case. While noting that the plaintiff does have an arguable case, without expert evidence from the defendant any evaluation of the relative strengths and weaknesses of the plaintiff's case is not possible. So, in determining this issue it was the other three criteria which were relevant.
Clearly the plaintiff would not suffer irreparable injury if the injunction was not granted. I accept he will continue to suffer inconvenience. However, he has been so inconvenienced since 2014. There is no suggestion in the evidence his health is under threat from the noise levels. While I would accept he would much prefer not to have the noise emanating from the hotel it could not be said that if the noise remains at its present level he will suffer irreparable injury.
Clearly the status quo favours the defendant. The Raffles Hotel has been in almost continuous operation since the 1890s. It enjoys iconic status. True it is it was refurbished in 2014 and on the plaintiff's evidence it is from that date that the noise problem began. But to limit the operation of the hotel in the way proposed by the plaintiff would represent a significant shift in the status quo. Overwhelmingly this issue favoured the defendant.
Finally, there is the question of the effect on third parties. Evidence led by the defendant suggests that moderating the level of noise would have an adverse effect and result in reduced clientele. That may be difficult to understand and it must be said the evidence led by the defendant is really little more than anecdotal. However, the defendant is a substantial company that manages a number of venues like the Raffles. It can be assumed they understand their clientele and the desires of the clientele. So, on balance it can be concluded that the grant of the injunction would have an adverse effect on third parties. Having said that it does not seem to me to be the overwhelming consideration in determining the application.
There are two further factors which should be mentioned. The first is that the trial of this matter is set for down for February 2018 - just over three months hence. So the plaintiff is not faced with a lengthy delay in having his claim determined. That further supports the proposition that the status quo ought be maintained. Second, if the injunction were granted it might well result in reduced turnover in the hotel. If the plaintiff was ultimately unsuccessful the defendant would be entitled to damages. It may not be terribly difficult to calculate what those damages would be. Perhaps it would be as simple as comparing the turnover in the period November to February in 2016/2017 with the turnover in the period November to February 2017/2018. But the defendant says, and I accept, the limitation on its activities would in all probability affect the hotel long term. Patrons once lost might not return. It may well be difficult to claim as compensation damages for the long term impact on the hotel business.
For these reasons I was not satisfied that the interim injunction ought be granted. Accordingly I dismissed the chamber summons. I will hear the parties as to costs.